This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

09 January 2011

The “Second-Amendment Solution”

Everyone seems to want to know why a previously unknown gunman shot and gravely wounded Congresswoman Gabrielle Giffords (D., Az.), killed federal Judge John Roll and five others, and wounded about a dozen more. What were his motives? Were they political? Is he a right-winger, maybe a Tea Mob member? Was he out to get a Democrat, Giffords in particular, or just any handy government official?

These are the absurd and possibly unanswerable questions with which our media occupy themselves. Meanwhile, they ignore and (perhaps deliberately) obscure the really important questions.

How did this likely deranged person manage to get and keep an extended-cartridge semi-automatic weapon? And how did he manage to bring it to a political rally, apparently without a single objection or challenge, from the time he procured it to the time he committed mayhem? Whether his motives for the shooting were or were not political, the answers to those questions certainly are.

Google the phrase “Second Amendment solution,” and you will get 763,000 hits in less than two tenths of a second. Google the more grammatically precise version, “Second-Amendment solution,” and you will get 1,180,000 more, for a total of almost two million.

To my knowledge, the phrase did not exist as recently as the 2008 presidential election. It certainly did not exist in 2004, when an obscure state senator from Illinois named Barack Obama first thrust his way into the national political arena with a masterful speech about Americans hewing to the center and learning to get along. Its most probable origin is the Supreme Court’s decision in June of last year that the Second Amendment provides a “fundamental right” to keep and bear arms that no state or locality can take away. (McDonald v. Chicago)

So what does the new phrase mean? The chief modern justification for the “right to bear arms” used to be protecting oneself from crime. But you’ll look for that rationale in the results of Google’s search of the phrase in vain. A few posts imply that shooting illegal immigrants might be desirable. But the vast majority of promoters of the phrase imply—and some say outright—that the “Second-Amendment solution” is a proper response to “big government” in general, or, in particular, to the Obama presidency and/or the Democrats’ erstwhile control of Congress, just now ended.

You cannot read even a few pages from these Google searches, let alone the numerous on-line comments to news media and blogs that use the term every day, without coming to a firm but terrifying conclusion. There are now many people in this country who believe that armed violence, or the threat of it, is a legitimate form of political expression.

How did a presumably civilized society once based upon rational and respectful debate come to this pass?

Well, the first two words of the armed extremists’ mantra are “Second Amendment,” so let’s look at it. It’s a single short sentence, which reads as follows: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

To understand what this sentence meant when first written, you have to know something about context. When our Founders ratified our Constitution in 1791, there was no such thing as a semi-automatic weapon. Rifles outnumbered pistols (because they were more accurate and useful), and most had primitive technology that made them far less accurate than today’s counterparts. The average rifle then required muzzle loading, in which the powder and shot were loaded laboriously and separately down the length of the entire barrel—a process that took as much as a minute or more.

So in the context of that time, it would have been utterly impossible for a single person to do what Giffords’ shooter did. After the very first shot—whether or not it hit anyone—the unarmed crowd would have overwhelmed, disarmed and subdued him. So point one is a simple fact: personal small arms create an infinitely greater threat to life, limb, personal security and public order today than they did when the Second Amendment was drafted.

The second point of context relates to the preamble, concerning the “well-regulated Militia.” There has been much debate about whether this clause expresses a condition, the reason, or merely one of several reasons for the right. But two facts are indisputable. First, there was no standing army in constitutional days. To fight our War of Independence against the British and their Hessian mercenaries, we had to raise special armies (at first, separately and specially in each state). We had to find money and means to pay them and arm them, and we did so ad hoc, as the need arose.

The second indisputable fact is that our revolutionary soldiers nearly all brought their own arms. Fortunately for our independence, they came overwhelmingly from rural areas. Many lived on farms or in near wilderness. They needed (and they had) firearms to shoot game and slaughter livestock (both healthy and sick) and to protect themselves from wild animals and infrequent attacks by native Americans.

So when our soldiers came to fight for our independence, they came with their own weapons, which they had bought themselves, knew well and assiduously maintained. Those who didn’t have their own firearms brought pitchforks and other sharp farm implements, made into makeshift spears.

The natural interpretation of the Second Amendment is that our Founders expected that practice to continue, sparing the public fisc from the burden of military supply. In other words, the “right to keep and bear arms” was a way of supplying a collective army by private means, in a form of what today we would call “partial privatization.”

A moment’s thought suffices to show that none of these rationales applies today. Small arms, especially when automatic or semi-automatic, are infinitely more dangerous and deadly than in 1791. The vast majority of our citizens don’t need them for protection or their livelihood because they live not on farms or in the wilderness, but in cities, where professional police forces (with far better skill, training and equipment than the average citizen) protect them. And we don’t need our troops to supply their own weapons because we have built up a vast military-industrial complex far more powerful and advanced than anything to which private citizens could aspire.

So none—not one—of the common-sense historical rationales for the Second Amendment applies today. Yet our Supreme Court, in its wisdom, and virtually ignoring the Second Amendment’s preamble, ruled that it imposes a “fundamental” personal right to bear firearms, in cities as well as the country. That right, said the Court, cannot “be infringed” by state or local government. And the Court, for future reference, essentially arrogated to itself the power to decide what types of weapons that “fundamental” right includes and under what circumstances. (No one ever thought that the right includes heavy weapons, whether cannon and howitzers in colonial times or machine guns and nuclear missiles today.)

More important, several members of the Court hinted that the Second Amendment was designed, at least in part, to allow free citizens to protect themselves against their own government. That rationale, of course, is almost impossible to draw from the text of the Amendment itself, which refers specifically to “the security of a free State.”

So if you want to know who is ultimately responsible for Congressman Gifford’s critical condition and Judge Hall’s murder, look to the top. Look to the five justices who supported the majority opinion in McDonald v. Chicago, namely, Alito, Kennedy, Roberts, Scalia and (for different reasons) Thomas.

These five men are responsible for perpetuating a “fundamental right” to bear arms, which neither states nor local government can infringe, and for twisting the meaning of a single, clear sentence two centuries out of historical context. More important, by labeling this “right” as “fundamental” and hinting that its purpose was to protect against governmental abuse, they set in motion a chain of consequences that anyone with the slightest understanding of cause and effect could foresee.

Now we must reap the whirlwind that they have sown. Their decision is one of a piece with Citizens United, which allows the men (most are still men) who control the corporations that provide our daily necessities to use the profit portion of money we pay for those necessities to propagandize us and corrupt our leaders. It remains to be seen which of those two intellectually and socially corrupting decisions will lead more quickly to the destruction of our society and the “ordered liberty” that these justices so pathetically claimed they intended to preserve.

(Google reports these results right under the search-request entry field.)

As for your last paragraph, you show the typical intellectual capacity of a right-wing fanatic: ranting without understanding what you are doing, jumping to conclusions, calling names, and generally acting like a sex-starved, ill-socialized teenager, which you probably are.

Grow up. Get an education. Learn some diplomacy, humility and social skills. Then we can talk.

wow nice fail guys at saying he's a liar i typed it in and got 1,090,000 hits-barely lower than what he said. maybe you all are the ones using the "mobile device with a dumbed-down Google interface." and yes i'm at a desktop computer-probably way more expensive than your all's and i agree with jay on many, but not all things he said. mainly the parts about needing to interpret the second amendment differently as we have weapons today capable of spraying even and killing many people.

At the risk of offending a supporter, I'd like to suggest that you stay in school and learn how to write complete sentences with some logical structure.

Most other people in the world do. If we Americans can't collectively out-think them, they're going to clean our clock, probably by the time you're my age. So unless you want to emigrate to earn a living, you may want to buckle down and pay attention in your English class (plus learn a foreign language well).

Your unexplained reference to “mirror neurons” may be lost on many readers, and I think it misapprehends the nature of corporations. So I’ll try to explain.

“Mirror neurons” are the parts of the brain thought to govern a human’s understanding that others have separate and distinct consciousnesses—what developmental psychologists call “theory of mind.” They are responsible for such things as mimicry, deceit, and the ability the persuade. Right now, we believe that only humans and certain other higher primates have mirror neurons, which are necessary and responsible for higher socialization.

But the problem with corporations is not that they don’t have mirror neurons. The officers and employees in them do. The problem is that, by law, they have a single overriding goal, to make money for their shareholders. That goal is neither moral nor immoral (although it can produce either conduct), but amoral. Thus corporations, by the law of their creation, have no morality as people recognize it. If they choose morals over money, their shareholders can sue (and win!) for corporate “waste.”

Notwithstanding these technical quibbles, I agree with your basic points. If the First Amendment presupposes a moral discourse, corporations are logically excluded, as they are amoral. I wish the Supreme Court had had the same insight.

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About Me

This blog reflects a quarter century of study and forty years of careers in science/engineering (7 years), law practice (8 years) and law teaching (25 years). A short bio and legal publication list appear here. My pre-retirement 2010 CV appears here.
As I get older, I find myself thinking more like an engineer and less like a lawyer or law professor. Our “advocacy” professions—law, politics, public relations and advertising—train people to take a predetermined position and support it against all opposition. That’s not the best way to make things work—which is what engineers do.
What gets me up in the morning is figuring out how things work and how to make them work better, whether they be vehicles, energy systems, governments or nations.
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